On Monday, the U.S. Supreme Court in McDonnell v. United States unanimously vacated the conviction of former Virginia Governor Bob McDonnell on federal public corruption charges, narrowing the definition “official acts” that can form the basis of domestic bribery-related prosecutions.
McDonnell was convicted by a jury of honest services fraud, Hobbs Act extortion, and conspiracy for his acceptance of $175,000 in gifts and loans from businessman Jonnie Williams, then chief executive officer of Star Scientific, in exchange for promoting a dietary supplement developed by Star Scientific. Because the theory underlying the honest services fraud and extortion charges was that McDonnell had accepted bribes, at trial the government was required to prove that McDonnell committed or agreed to commit an “official act” as that term is defined in the federal bribery statue, 18 U.S.C. § 201(a)(3), in exchange for the loans and gifts from Williams.
The central dispute before the Supreme Court was whether McDonnell committed “official acts” when he arranged meetings for Williams with state officials, hosted events for Star Scientific at the Governor’s Mansion, and contacted state officials on behalf of Williams and Star Scientific. Ultimately, the Supreme Court agreed with McDonnell that these acts did not constitute “official acts.”
The Court held that the definition of “official act” in the federal bribery statute, § 201(a)(3), comprises two prongs. First, “official action” requires a decision or action on a “question, matter, cause, suit, proceeding or controversy.” That question or matter must involve a formal exercise of governmental power akin to a lawsuit, an agency determination, or a committee hearing and must be something specific and focused that is either “pending” or “may by law be brought” before a public official. Second, “official action” requires the public official to make a decision or take action (or agree to do so). The Court held that hosting an event, meeting or speaking with other officials, or setting up meetings is not, standing alone, “official action.” Rather, “the public official must make a decision or take an action on that question or matter, or agree to do so.” To illustrate, the Court noted that “official action” may include using the official’s position to exert pressure on another official to perform an “official act,” or to advise another official, knowing and intending that such advice would form the basis for an “official act” by another official.
It remains to be seen whether the Court’s decision will have implications beyond the domestic bribery context and affect, for instance, whether prosecutions brought under the Foreign Corrupt Practices Act (FCPA) must now establish an “official act” within the meaning of McDonnell. The bases of the McDonnell decision appear to have application to the FCPA. The text of the FCPA, while certainly not identical to the federal bribery statute, contains provisions akin to “official act” and the due process and fair notice concerns that run throughout McDonnell could be applied to proceedings under the FCPA.
SKV’s white-collar attorneys regularly represent corporations and individuals in public corruption related internal investigations, government investigations, and prosecutions. If you have questions, please contact Dane Ball, David Isaak, or Karima Maloney.
